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From the Desk of the Executive Director

Ken Phillips is co-founder and Executive Director of Independent Contractors of Australia. He is a published authority on independent contractor issues and directs research on related commercial and trade practices issues. Through his numerous articles in newspapers and think-tank and academic journals, Ken is known for approaching issues from outside normal perspectives and is frequently sought out for media comment.

Harmony lacking on nation's work safety laws

Friday, December 02, 2011

The Gillard government's attempt to harmonise the nation's work safety laws is, on current evidence, suffering a slow death.

Originally hailed as one of Julia Gillard's great negotiating triumphs, the legislation is falling over because of fundamental and even dangerous flaws in its core design.

There are two key dangers. One is the startling discovery that the new laws remove every Australians' right to silence, a primary human right under criminal law.

Occupational health and safety law is criminal law, and the removal of this right will inevitably lead to abuses of the prosecution process.

Such abuse was evident in NSW under that state's manifestly unjust occupational health and safety laws operating between 2000 and this year.

One NSW judge referred to the abuse of process in a state prosecution of the mining giant Xstrata as persecution rather than prosecution.

It was Xstrata's individual managers who suffered at the hands of the NSW prosecutor. Expect similar abuses under the harmonised OHS laws.

The other major danger also relates to a legislative structure that will allow abuse of the prosecution process. OHS law in most states has been structured around the internationally accepted principle that everyone is responsible for safety according to what is under their "reasonable and practicable control".

These words tied together ensure that every person in the work situation is held responsible and liable for safety. That is how it should be.

The NSW abuses of justice occurred because the 2000-11 laws did not have the words "reasonable, practicable control".

OHS prosecutions and convictions occurred because people who had no control over a work safety incident were tried and convicted.

The harmonised laws have excluded the word "control" so people will be held responsible according to what is "reasonable and practicable".

Lawyers are in furious disagreement over what this means. The warning signals are glaring, however. It is inevitable that prosecutions will occur against people who will have had no control of a work incident.

Predictably, NSW-style prosecution abuses will be repeated, leading to extensive appeals to discover what the legislation means. Expect this to take at least a decade.

The outcome is that the core structure of the harmonised OHS laws is bad law. It is taking the people and businesses of Australia from certainty and clarity to confusion.

Quite oddly the "big end of town" business associations signed off on the laws and continue to promote them. On any measure they are selling their member businesses and business executives a dangerous "dog".

Their members will feel the pain not the associations. The Business Council of Australia, for example, is ignoring its own 2007 report and recommendations on OHS, "Making Work Safe". This called for "reasonable, practicable control" in the laws.

The reasoning for the rush to harmonised laws by the big business organisations seems to be that beneficial regulations have been crafted for many industries.

The business associations have focused on the alleged benefits of the regulations and think they can live with the legislative dangers. At least they think they can make changes later. If this is so, it portrays a flippant disregard for justice principles and practices.

Not all industry associations are aligned with the thinking of the big end of town.

Many of the industry regulations and most of the codes of practice have not yet been written or finished. Some early regulation drafts caused uproar in some sectors for the irrationality contained in the drafts. The housing industry is just one example.

The list of organisations calling for the harmonised laws to be amended is already large. This includes the Housing Industry Association, Master Builders Association, Motor Traders Association, Australian Hotels Association, Civil Contractors Federation, Independent Contractors Australia, Council of Small Business of Australia and Self Insurers of SA and Business SA naming just some.

State parliaments and governments have smelt a problem. This week the South Australian Liberal opposition moved to defer legislative debate until February and won support in the upper house.

The West Australian government has long held concerns and has delayed consideration until well into next year.

The Victorian government has taken the same position as WA and deferred consideration pending the outcome of a Victorian review into the implications of the laws.

The Tasmania parliament seems unlikely to proceed with the laws this year. The Queensland opposition has reserved its right to amend the laws should it win government in next year's election.

The alleged date for the start of the national harmonised laws, January 1, next year, is now unachievable. The process has ground to a halt. This need not be the case. It is demonstrable that the laws as currently drafted are a backward step from existing laws.

The cause of safer work will go backwards. Most states are concerned, as are a range of businesses. It is time to make amendments so harmonisation of OHS can proceed.

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